Carfra Lawton LLP | Victoria BC

No Adverse Inference Drawn Against Defendants For Not Tendering Expert Report

In Slater v. Gorden, the defendants admitted liability for the motor vehicle accident and admitted that the plaintiff suffered both physical and psychiatric symptoms as a result. However, the defendants disagreed with the plaintiff as to the nature, extent, and seriousness of the injuries and resulting losses.

The defendants had the plaintiff seen for a medical assessment, but at trial chose not to serve a report from that expert. In response, the plaintiff sought to have an adverse inference drawn by the Court. It was the plaintiff’s submission that the Court should assume that the evidence of the defendants’ expert would have supported a finding that the plaintiff suffered from chronic pain and depression, and that those symptoms were permanent.

The Court decided that no inference should be drawn. In coming to this decision, the Court noted that a judge is not bound to draw an adverse inference from the failure of a witness or party to testify (see Thomasson v. Moeller, 2016 BCCA 14), and that:

[97]    I find that there should be no adverse inference drawn against the defendants for their decision not to request a report from Dr. Masri. To draw an adverse inference every time a defendant does not order a report arising from a medical examination of the plaintiff is not appropriate. It may well be that Dr. Masri’s opinion was not helpful to the defendants or perhaps his opinion added nothing to the opinions already expressed.

[98]    Ultimately, there must be something more before an adverse inference is drawn. As has been the case on several occasions in which this court has declined to draw an adverse inference against the plaintiff for the failure to call a physician, there is an insufficient basis here to draw an adverse inference against the defendants: see Djukic v. Hahn, 2006 BCSC 154 (CanLII) at para. 60; Bouchard v. Brown Bros. Motor Lease Canada Ltd., 2011 BCSC 762(CanLII) at paras. 118-122; Love v. Lowden, 2007 BCSC 1007 (CanLII) at paras. 57-58.

Case summary provided by Karl Roemer